CUB 70244

Hon. David G. Riche

The issue in this case is whether or not the claimant voluntarily left her employment without just cause pursuant to sections 29 and 30 of the EI Act.

The claimant had been working with the Ontario Lottery Commission for about three years. She left her employment on the 28^th of January, 2007. The reason that she left her employment was that she was working too many nights alone as a dishwasher and needed help. She was also not happy about having to do so many night shifts. From the employer's point of view, they pointed out that it was during the night shift that the claimant was needed. They point out that the casino is open 24 hours a day and seven days per week.

The claimant advised the Board of Referees that she tried to ask the employer for assistance in her job but was told she was hired for shift work and that nothing could be changed. During this period prior to leaving, the claimant visited a physician in the latter part of 2006. The claimant was apparently suffering from stress.

The claimant advised the Board that she had asked her employer for help or to reduce her hours of work, especially during the night. She apparently waited a number of weeks for it to change but it never happened. Apparently no changes were made until after the claimant left. Following the claimant's quitting her employment, the employer hired three more personnel.

The Board found as a fact that due to her health, the claimant wanted to work part time only and the employment with the Lottery Corporation turned out to be full time. They also felt that her health may be at risk from continued long night shift work. For these reasons the Board found that the claimant had just cause for leaving her employment and allowed her appeal.

The Commission in its appeal states that the claimant did not provide evidence which supports the finding that the claimant quit her job for medical reasons or that she had no alternative to quitting when she did. They point out that while the Board considered that the claimant did exercise the reasonable alternative of asking her employer for help prior to leaving, they did not address themselves to all the reasonable alternatives available to the claimant. They failed to consider that the claimant could have approached her union for help. They pointed out that she could have also sought leave on medical grounds or found other work prior to leaving.

I have considered the evidence in this matter and it appears that the claimant was only hired for part time work where she would only be working about three days per week. She advised me that that was the arrangement under which she took the job. She did not expect to have to work a full 40 hours per week and at night.

With regard to the issue of medical evidence, it seems as though in Exhibit 11-1 there is a statement from a Dr. Bahra which states that the claimant had reported symptoms of severity that had prevented her from working on August 12, 2006. Then at 11-2 there is another doctor's note which is dated November 3, 2006 providing an excuse to the claimant for absences on November 2 and 3 of 2006. Again, at 11-3 there is another note from Dr. Bahra to the effect that the claimant may have been prevented from working on the 3^rd and 4^th of November. Then there is another medical note dated the 31^st of December, 2006.

It, therefore, appears that this claimant was having medical problems during the last few months that she was working with the employer. It appears that this claimant did not get the job that she bargained for and was put in a position where she had to work full time which caused her difficulties and caused her to miss work as is pointed out in the notes from the walk-in clinics that she attended.

I also note that the employer hired three people to assist in the work that the claimant was doing after she had left her employment.

Considering all of this evidence, I am satisfied that firstly, the employer made significant changes in the claimant's work duties in that they caused her to have to work full time, which is contrary to s. 29(c)(ix), which states - significant changes in work duties.

Although it has not been proven, I also suspect that the working conditions of the claimant having to work so many nights alone were a danger to her health.

Having considered the decision of the Board of Referees and the fact that the claimant sought other employment with no success, shows that she had no reasonable alternative but to leave her employment with the Lottery Corporation.

On the whole of the evidence, it seems clear that the claimant was overworked and not fairly treated or listened to by her employer as was shown by the fact that no extra help was hired until after the claimant quit. The claimant's contract of employment was for part time work which was made into full time without her agreeing to do it. One might believe that because she did the work full time that she was acquiesing in what the employer was asking her to do. The evidence shows, however, that that was not the case as the claimant was asking to get help but no help was provided.

For these reasons I am satisfied that the Board of Referees' decision should be accepted as the claimant had shown just cause for quitting her employment and had no reasonable alternative but to quit when she did. She had looked for other employment, she had requested help but the employer did nothing to help keep her employed. For these reasons the appeal of the Commission is dismissed.

David G. Riche

UMPIRE

March 26, 2008
St. John's, NL